ALLAH NEWAZ SHEIKH Vs. MTRAQIYA BIBI

JUDGEMENT

(1.) These are two connected appeals by Allah Newaz in an Encumbered Estates Act matter.

(2.) The facts giving rise to them are these. There were two applications under the Encumbered Estates Act by two sets of debtors. It so happened that one Farzand Ali was a creditor of both the sets of debtors. On the date the debtors filed their application, Farzand Ali was dead. The debtors, therefore, impleaded Farzand Ali's daughters as heirs of Farzand Ali and showed them in the list of creditors. Necessary notices were issued and eventually a decree was passed in one case for over Rs. 9,500 in favour of the daughters, while in the other case, a decree for over Rs. 5,000 was passed in favour of the daughter s. Both these decrees were under Section 14, Encumbered Estates Act. In both these oases, the present appellant filed objections. His case was that he was the rightful heir of Farzand Ali and that the decrees under Section 14 should have been passed in his favour. The matter was considered by the Special Judge, Second grade, and he dismissed the objections of the appellant in both the cases with costs to the daughters of Farzand Ali. The appellant appealed to the District Judge.

(3.) A preliminary objection was raised at the hearing of the appeal before the District Judge to the effect that the court fee paid was insufficient. The main point of contention, in this connection, was whether the court-fee should be levied under Schedule l, Art. 1, Court-fees Act, or under Schedule 2, Art. 11 of the same Act. The contention of the appellant was that the court-fee should be levied under Schedule 2, Art. 11 while the contention, on the other side, was that it should be levied under Schedule 1, Art. 1. The Court below has decided that the court fee should be levied under Schedule 1, Art. 1, that is, ad valorem. The present appeal is from this order of the Court below.